Citation Nr: 0625700
Decision Date: 08/21/06 Archive Date: 08/31/06
DOCKET NO. 04-05 077 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for irritable bowel
syndrome (IBS).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from October 1962 to
October 1966.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an April 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts.
Although the RO has treated the veteran's IBS claim as
reopened, the Board must also assess whether new and material
evidence has been submitted sufficient to reopen the claim of
service connection. Wakeford v. Brown, 8 Vet. App. 237
(1996). The United States Court of Appeals for Veterans
Claims (Court) has held that the Board is obliged to
determine in the first instance whether there is new and
material evidence to reopen the claim, regardless of the RO's
action. Barnett v. Brown, 8 Vet. App. 1 (1995). Insofar as
the veteran's claim has been reopened, the veteran is not
prejudiced by the Board's discussion of materiality. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
The issue of entitlement to service connection for IBS is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. An unappealed December 1997 rating decision denied the
veteran's claim for service connection for IBS.
2. Evidence received since the December 1997 decision is
neither cumulative nor redundant and raises a reasonable
possibility of substantiating the claim of entitlement to
service connection for IBS.
3. The veteran did not serve in combat and the record does
not include credible supporting evidence verifying the
occurrence of the veteran's claimed in-service stressors.
CONCLUSIONS OF LAW
1. New and material evidence has been received and the claim
of service connection for IBS is reopened. 38 U.S.C.A. §§
5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2005).
2. Post-traumatic stress disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran's Claims Assistance Act of 2000 (VCAA), codified
in its pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West
2002 & Supp. 2005), and the pertinent implementing
regulation, codified at 38 C.F.R. § 3.159 (2005), provide
that the VA will assist a claimant in obtaining evidence
necessary to substantiate a claim, but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also requires the VA to notify the claimant
and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, the VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, the VA will
attempt to obtain on behalf of the claimant. In addition,
the VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
In addition, the Board notes that the United States Court of
Appeals for Veteran's Claims (the Court) has held that the
plain language of 38 U.S.C.A. § 5103(a) requires that notice
to a claimant pursuant to the VCAA be provided "at the
time" of, or "immediately after," the VA's receipt of a
complete or substantially complete application for VA-
administered benefits. Pelegrini v. Principi, 18 Vet. App.
112, 119 (2004).
The notification requirement listed in 38 C.F.R. § 3.159
applies equally to all downstream issues from the claim (i.e.
the initial-disability-rating and effective-date elements of
a service-connection claim). See Dingess v. Nicholson, No.
01-1917 (U.S. Vet. App. March 3, 2006) (Hartman, No. 02-
1506).
Since the previously final claim in this decision has been
reopened, the Board need not make a determination as to
whether the notice requirements of Kent v. Nicholson, No. 04-
181 (U.S. Vet. App. March 31, 2006), have been met.
Prior to the initial adjudication of the veteran's claim, the
RO mailed the veteran a letter in September 2002 that
provided the notice required under the VCAA and the
implementing regulation. The RO notified the veteran of its
duty to assist him in obtaining pertinent evidence and
medical records to support the veteran's claims as well as
requested that the veteran submit any supporting medical
records from private treatment. Additionally, the RO
informed the veteran as to what the evidence must show to
establish entitlement. The RO also requested that the
veteran identify any relevant records and/or additional
supporting information or evidence, and submit authorizations
to the RO so that the RO could obtain the records or other
evidence on his behalf. Therefore, the Board believes that
the veteran was on notice of the fact that he should submit
any pertinent evidence in his possession.
Although the veteran has not been provided notice of the type
of evidence necessary to establish a disability rating or
effective date for the disability for which service
connection is sought, the Board finds that there is no
prejudice to the veteran in proceeding with the issuance of a
final decision. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993) (where the Board addresses a question that has not
been addressed by the agency of original jurisdiction, the
Board must consider whether the appellant has been prejudiced
thereby). As explained below, the Board has determined that
service connection is not warranted for the claimed
disability. Consequently, no disability rating or effective
date will be assigned, so there can be no possibility of any
prejudice to the veteran in not notifying him of the evidence
pertinent to those elements.
The record reflects that the veteran's service medical
records and VA medical records have been obtained. The
record also reflects that the veteran been provided VA
medical examinations. The veteran was sent a PTSD
questionnaire letter in June 2002. A summary of the
veteran's claimed stressors were sent to the Marine Corp for
verification, and a response was received from the Marine
Corp in March 2003. The veteran has not identified any other
medical records or evidence pertinent to his claim. The
Board is similarly unaware of any such outstanding evidence.
Therefore, the Board is satisfied that the VA has complied
with the duty to assist requirements of the VCAA and the
implementing regulations.
Finality Regulations
Regulations provide that an appeal consists of a timely filed
notice of disagreement in writing and, after a statement of
the case has been furnished, a timely filed substantive
appeal. 38 C.F.R. §§ 20.200, 20.302 (2005). Absent appeal,
a decision of a duly constituted rating agency or other
agency of original jurisdiction shall be final and binding on
all VA field offices as to conclusions based on evidence on
file at the time VA issues written notification. 38 U.S.C.A.
§ 7105; 38 C.F.R. § 20.1103 (2005).
New evidence means existing evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
Claim to Reopen
The RO first denied the veteran's claim for service
connection for a stomach disorder, to include irritable bowel
syndrome, in December 1997. The veteran did not appeal that
decision and it became final.
In April 2002, the veteran requested that his claim be
reopened.
At the time of the December 1997 final rating decision, the
post service medical records did not include any medical
evidence of a nexus between the veteran's IBS and service.
The medical evidence received subsequent to the December 1997
rating decision includes a February 1999 letter from a
private physician that states that the veteran has had IBS
for decades and indicates a possible nexus between the
veteran's service in Vietnam and his IBS. Since the newly
submitted evidence provides a possible link between the
veteran's IBS and his military service, the Board finds that
this evidence is material to the veteran's claim and that
reopening of the claim of entitlement to service connection
for IBS is warranted. 38 C.F.R. § 3.156(a).
PTSD
Service connection for post-traumatic stress disorder
requires medical evidence diagnosing the condition in
accordance with § 4.125(a) of this chapter; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to that combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R. §
3.304(f).
History:
The veteran maintains that he has PTSD due to stressful
events he experienced in Vietnam. The veteran reported that
he saw people get killed and that he saw over 400 body bags
while he was in Vietnam. He further stated that he had been
exposed to incoming rockets and mortars, and that he had been
under sniper fire. The veteran also submitted one of his
service personnel records which shows the military operations
he participated in while in Vietnam. He asserted that this
reflected evidence of a life threatening stressor.
An October 1997 psychiatric examination found the veteran to
have no psychiatric disability of any kind. An August 2002
VA examination report contains a diagnosis of PTSD.
The veteran's service medical records, including the October
1966 discharge examination report reveal no indication that
the veteran had any psychiatric disability or that he was
exposed to any traumatic events.
The veteran's service personnel records indicate that he was
a truck driver in the Marines and that he served in Vietnam.
These records do not indicate that the veteran received any
medals or citations indicative of exposure to combat. The
veteran asserts that his participation in a number of
military operations indicates exposure to combat. The list
of military operations, along with other information provided
by the veteran, was sent to the Commandant of the Marine
Corps. In a February 2003 letter, the Marine Corps stated
that the information provided by the veteran was insufficient
for verification that he had been exposed to any traumatic
stressor.
Analysis:
In this case, the veteran has received a diagnosis of PTSD
from a VA physician. However, as noted above, the veteran
did not receive any medals which would indicate exposure to
combat, and the evidence of record does not indicate that the
veteran was exposed to combat. Accordingly, the Board
concludes that combat status has not been demonstrated in
this case. Because the veteran did not engage in combat, the
law requires that stressors be corroborated. The veteran's
lay testimony alone is not enough to establish the occurrence
of an alleged stressor. See Moreau v. Brown, 9 Vet. App.
389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996).
Although the veteran has reported that he saw people killed,
that he was exposed to mortar fire, and that he experienced
other stressors in Vietnam, there is absolutely no objective
evidence in support of his contentions. The veteran has been
requested to provide detailed information in order to
corroborate his stressors, yet he has only provided general
and insufficient information. The Board notes that the
Marine Corp has indicated that the general information about
being in various military operations does not provide any
verification that the veteran was actually exposed to combat.
The veteran has not provided detailed information as to
names, dates, or any other additional information which could
lead to corroboration of his claimed stressors. Since none
of the veteran's claimed stressors have been confirmed,
service connection for PTSD is not warranted. 38 C.F.R.
§ 3.304(f).
For the reasons and bases expressed above, the Board
concludes that the preponderance of the evidence is against
the veteran's claim, and that service connection for PTSD is
not warranted.
ORDER
New and material evidence having been submitted the claim for
service connection for IBS is reopened.
Entitlement to service connection for PTSD is denied.
REMAND
The veteran claims that he is entitled to service connection
for IBS. At an October 2002 VA examination the veteran
reported periodic treatment for his IBS by a Dr. Obrien. The
record does not indicate that an attempt was made to obtain
records from Dr. Obrien.
The veteran has submitted a medical opinion from Dr.
Frederick Makrauer regarding his irritable bowel syndrome.
However, no attempt has been made to get copies of any
treatment records of the veteran from this physician.
The veteran should be provided a VA examination of the
digestive system in order to determine the nature and
etiology of any disability present. See 38 C.F.R.
§ 3.159(c)(4).
Accordingly, the case is REMANDED for the following action:
1. With respect to the claim for service
connection for IBS, the RO should provide
the veteran VCAA notice in accordance
with the decision in Quartuccio v.
Principi, 16 Vet. App. 183 (2002), and
Dingess v. Nicholson, 19 Vet. App. 473
(2006), as well as 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002 & Supp. 2005),
38 C.F.R. § 3.159(b), (c), and any other
applicable legal precedent. The RO
should provide the appellant notice of
the information and evidence necessary to
substantiate his claim, notice of which
evidence, if any, the claimant is
expected to obtain and submit, and which
evidence will be retrieved by VA, notice
of what evidence is necessary for
establishing a disability rating and an
effective date, and notice that he should
provide any evidence in his possession
that pertains to the claim.
2. The RO should contact the veteran and
request that he provide the name and
address of all providers of medical
treatment for irritable bowel syndrome
since service, and any authorization
necessary for release of the records of
such treatment to VA. The RO should
contact each identified provider, to
include Dr. Obrien, Dr. Frederick
Makrauer, and the Newton-Wellesley
Hospital, and request a copy of all such
treatment records since 1967. All
obtained clinical records and documented
responses should be associated with the
claims folder.
3. When the above actions have been
accomplished, the RO should arrange for
the appropriate VA examination to
determine the nature and extent of any
irritable bowel syndrome disability
present. All indicated tests and studies
should be performed. If irritable bowel
syndrome is found, the examiner should
express an opinion as to whether the
disability is at least as likely as not
related to the veteran's service. The
rationale for all opinions expressed
should be explained. The claims file
should be made available to the examiner
for proper review of the medical history.
The examination report is to reflect
whether such a review of the claims file
was made.
4. The RO should then review the claims
file to ensure that the requested
development has been completed. The RO
should ensure that the VA examination
complies fully with the above
instructions, and if not, the RO should
take corrective action. Stegall v. West,
11 Vet. App. 268 (1998).
5. If the benefit sought on appeal is
not granted to the veteran's
satisfaction, or if a timely notice of
disagreement is received with respect to
any other matter, the RO should issue a
supplemental statement of the case for
all issues in appellate status and inform
the veteran of any issue with respect to
which further action is required to
perfect an appeal.
In taking this action, the Board implies no conclusion,
either legal or factual, as to any ultimate outcome
warranted. No action is required of the appellant until he
is notified by the RO.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
K. Osborne
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs